Quoted more on Sotomayor

“It’s not as if I think Obama’s incapable of nominating someone who is more adventurous and more activist by nature,” said Walter Olson, a senior fellow at the conservative Manhattan Institute. “Maybe we should save the all-out blast for when he nominates that one.”

I also have a comment on Ricci v. DeStefano, the lawsuit that arose from relatively blatant discrimination by the city of New Haven against non-minority firefighter applicants. I would not be surprised to learn that Sotomayor’s views on reverse discrimination differed widely from my own, but still note that it’s vaguely incongruous to treat as Exhibit A for a charge of judicial activism an instance in which the judge and her colleagues ducked a case.

Finally, my postings on the Sotomayor nomination continue at Point of Law, including an item on a Connecticut school discipline case where the nominee has drawn fire for (as part of a unanimous panel) siding with the school authorities. More: Jake Tapper, ABC.

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Quoted on Sotomayor…

[adapted from posts at Overlawyered] John Schwartz quoted me yesterday in the New York Times on Sonia Sotomayor’s opinions in civil litigation, where she comes across as generally on the liberal side, but not an anti-business crusader (see also Adam…..

Ricci was plainly decided wrongly by Judge Sotomayor, but whether she was merely wrong about a couple of clear-cut but narrow issues that should have kept her from summarily throwing the case out before trial, or whether she was also wrong about larger constitutional and statutory issues, is open for debate.

Based on its own past precedents, the Supreme Court could either rule outright for the white firefighters, or merely revive their lawsuit on very narrow, uncontroversial grounds that merely enable them to have their cases heard at a trial, but don’t guarantee that they’ll win at trial.

Even the Obama Administration’s brief admits Sotomayor got the case wrong on some obvious, but narrow, grounds, in throwing the white firefighters’ case out at such an early stage.

Moreover, there is an additional ground for reversal, under the Supreme Court’s decisions in Shaw v. Hunt (1996), Mount Healthy Bd. of Educ. v. Doyle (1977), and Price Waterhouse v. Hopkins (1989), regardless of how one feels about affirmative action, or “quotas.”

There was evidence — at least enough to bar dismissal of the case before trial — that the City of New Haven was motivated not by a fear of minority firefighter lawsuits, but by simple racial favoritism and political motivations, in rescinding the white firefighters’ promotions.

The presence of such a motivation would make even an otherwise permissible instance of affirmative action invalid under Shaw v. Hunt (1996), where the Supreme Court said that using race is impermissible even if it would otherwise be justified to overcome the legacy of discrimination, if the actual motive for using race was not to overcome past discrimination, but something else, like political motivations. Under the Shaw ruling, a proper remedial rationale must “actually precipitate” the racial decision, not just provide an after-the-fact rationalization for them.

Moreover, even if the City of New Haven actually had a legitimate motive, if it also had illegitimate political or racial motives, that would allow a court to rule against it at trial under the Supreme Court’s mixed motives rulings in Mount Healthy City Bd. of Educ. v. Doyle (1977) and Price Waterhouse v. Hopkins (1989).

Even cities enjoyed broad leeway to use race to offset real or perceived disparate impact, and even if the City of New Haven were likely to win at trial, Judge Sotomayor thus plainly erred in upholding the dismissal of the firefighters’ claims before any opportunity for a trial. It is clear that she jumped the gun in her ruling.

I left out the word “if” in the last paragraph of my comment above, which should have read, in closing,

“Even IF cities enjoyed broad leeway to use race to offset real or perceived disparate impact, and even if the City of New Haven were likely to win at trial, Judge Sotomayor thus plainly erred in upholding the dismissal of the firefighters’ claims before any opportunity for a trial. It is clear that she jumped the gun in her ruling.”

With great dismay, I believe that judge Sotomayor was correct in this Ricci case. The test used by New Haven had a disparate impact. That was enough to justify trowing out the test according to the trial judge.

The trial judge could have ruled otherwise and also been upheld. She should have applied the disparate-impact criterion to the total experience of the testing firm. But her logic was arguably correct, if sophomoric, and I believe that is the standard for appellate review.

Clearly the New Haven officials tried very hard to have a test that was both valid and non-discriminatory by hiring a national firm with expertise in testing fire fighters. Generally blacks do not do as well on written tests as whites. The test had 40% weight on its non-written component. What is sad is that written tests actually over-predict the subsequent performance of blacks; they are biased in favor of blacks.

If we want tests to be valid and to provide diversity, then we have to use quotas. Decades of experience proves this.